Decision  Sibley, Michael v. Franklin Regional Retirement System (CR-15-54)

Date:	03/16/2018
Organization:	Division of Administrative Law Appeals
Docket Number:	CR-15-54

• Petitioner: Michael Sibley
• Respondent: Franklin Regional Retirement System
• Appearance for Petitioner: Katherine Lamondia-Wrinkle, Esquire
• Appearance for Respondent: Michael Sacco, Esquire
• Administrative Magistrate: Judithann Burke

Summary of Decision

The Petitioner, a former Truck Driver/Laborer in the Town of Northfield, has met his burden of proving that he is entitled to be evaluated by a regional medical panel based upon his claim that he incurred a permanently disabling, irreparable left rotator cuff tear injury caused by gradual deterioration and cumulative wear and tear.  He has met the notice requirements set forth in G.L. c. 32, §§ 7(1) and 7(3). 

Decision

The Petitioner, Michael Sibley, is appealing from the February 5, 2015 decision of the Respondent, Franklin Regional Retirement Board (FRRB), denying his application for Section 7 accidental disability retirement benefits.  (Exhibit 10.)  The appeal was timely filed with the Division of Administrative Law Appeals on February 13, 2015.  (Exhibit 11.)  A hearing was scheduled to be held on June 19, 2017 in Room 305 at 436 Dwight Street, Springfield, MA.    

In a letter dated June 14, 2017, FRRB counsel notified the Administrative Magistrate that the parties wished to submit their respective cases on the documents and waive the hearing.  (Exhibit 15.)  See 801 CMR 1.01(10)(c).  The Petitioner submitted a pre-hearing memorandum and an attached exhibit list on December 21, 2015.  (Attachment A and Exhibits 1-11.)  The Respondent submitted a pre-hearing memorandum, and a response to the Petitioner’s proposed facts on March 6, 2017.  (Attachment B.)  The parties submissions in lieu of the hearing were received on August 2, 2017 (Petitioner-Attachment C; Respondent-Attachment D with Exhibits 12-14), thereby closing the record. 

Exhibit no.	Document Description
1	November 9, 2013 application for accidental disability retirement
2	Treating Physicians’ Statement of John R. Corsetti, M.D. February 24, 204
3	Order of Payment, Department of Industrial Accidents March 12, 2014
4	Job description Truck Driver/Laborer
5	Medical Records from New England Orthopedic Surgeons             Dr. Martin Luber December 28, 2010             Dr. John R. Corsetti December 7 and December 16, 2013
6	December 24, 2012 Baystate Imaging Center-MRI left shoulder
7	Notes of John R. Corsetti, M.D. December 1, 2013 and March 5, 2014
8	March 5, 2014 Report of Stephen E. Seldon, M.D.
9	IME Reports of Kuhrt Wieneke, M.D. May 1, 2014 and May 15, 2015
10	February 6, 2015 Notice of Retirement Board Action
11	Petitioner’s February 1, 2015 Notice of Appeal
12	Employer’s First Report of Injury received by DIA on December 7, 201
13	December 19, 2013 Employee’s Claim
14	August 15, 2016 DIA Lump Sum Agreement
15	June 14, 2017 letter from Attorney Sacco indicating parties’ intent to waive hearing

Findings of Fact

Based on the documents and written submissions of the parties, I hereby render the following findings of fact:

1. The Petitioner, Michael Sibley, born in 1953, began employment as a Truck Driver/Laborer in the Town of Northfield Highway Department in 1999.   (Attachment D and Factual Stipulations.)
2.  As a Truck Driver/Laborer, the Petitioner’s daily job duties included heavy lifting, pushing, pulling, lifting and reaching above chest height, shoveling, driving trucks and operating a chain saw for periods of time.  (Id.)
3. As a Truck Driver/Laborer, the Petitioner would also frequently shovel tar, dirt, gravel and stone.  He lifted frames and grates used for drainage that weighed in excess of 100 pounds.  He also cut and split wood either in a bucket loader or stockpile.  He performed many of these job duties, amongst others, on a daily basis, including during the winter months and other periods of inclement weather.  (Exhibit 4.)
4. The Petitioner was seen by Martin J. Luber, M.D. for an evaluation of his right shoulder on December 28, 2010.  This was noted to be due to an earlier Workers’ Compensation claim for which he had been treating with Dr. John R. Corsetti.  Dr. Corsetti noted that there was an irreparable rotator cuff defect on the right and that he suspected an irreparable cuff defect on the left.  (Id. and Exhibit 5.)
5. The Petitioner began seeing John R. Corsetti, M.D. in December 2012 for left shoulder pain and limitations.  (Attachment D & Factual Stipulation.)
6. After complaints of left shoulder pain, the Petitioner underwent an MRI of the left shoulder on December 14, 2012.  This revealed a complete rotator cuff tear and atrophy of the cranial muscle fibers.  There were also moderate degenerative changes in the acromioclavical joint with joint effusion.  (Attachment D, Factual Stipulation and Exhibit 6.)
7. The Petitioner last worked on or about August 29, 2013.  (Attachment D, Factual Stipulations.)
8. A December 23, 2013 Employer’s First Report of Injury prepared by Tom Hutcheson reflects a date of injury of September 6, 2013, a first day of total or partial incapacity of September 9, 2013 and  fifth day of total or partial incapacity of September 13, 2013.  The description of how the injury/exposure occurred was noted to be “cumulative trauma, lifting, shoveling, dx bilateral rotator cuff tears.”  (Exhibit 12.)
9. A DIA Employee’s Claim, also dated December 23, 2013 reflects a date of injury of September 6, 2013, a first day of total or partial incapacity of September 9, 2013 and a fifth day of total or partial incapacity of September 13, 2013.  The description of the injury was “bilateral rotator cuff tears.”  (Exhibit 13.)
10. A lump sum agreement on the basis of the two December 23, 2013 claims was approved on August 15, 2016.  (Exhibit 14.)
11. The Petitioner applied for accidental disability retirement benefits on March 19, 2014.  His application was accompanied by a Physician’s Statement from Dr. Corsetti.  The doctor asserted:

Sibley was mentally or physically incapable of performing the essential duties of his particular job; and [his] condition is likely to be permanent; and [his] incapacity is such as might be the natural and proximate result of the claimed personal injury or hazard undergone in the performance of [Sibley’s] duties on account of which [said] disability retirement is based. 

(Exhibit 2.)

12. In his application, the Petitioner alleged disability due to “bilateral rotator cuff tears, right and left.”  He described his work hazard as “cumulative stress of heavy work activities.”  (Exhibit 1.)
13. The Petitioner was evaluated by Kuhrt Wienke, M.D. of the Orthopedic Center on May 13, 2014.  Dr. Wienke made mention of a work injury to the Petitioner’s right shoulder in 2001.  Regarding the Petitioner’s left shoulder, he concluded that a massive rotator cuff tear was present and noted “no specific injury history.”  He did note that “a massive rotator cuff tear with retraction, which is irreparable, is, again more likely than not related to long-term heavy work activities.”  The Petitioner’s daily lifting requirements were in excess of fifty (50) pounds. (Attachment D, Factual Stipulation and Exhibit 9.)  
14. The Petitioner received Workers’ Compensation benefits pursuant to G.L. c. 152, § 34 from January 12, 2014 to May 14, 20  The claim was based on the aforementioned Employee’s Claim.  (Attachment D and Exhibit 12.)
15. The Petitioner requested that a joint regional medical panel be appointed to examine him.  (Attachment D.)
16. The Petitioner never filed an injury report with the FRRB within ninety (90) days of suffering an injury within the performance of his duties.  (Id.)
17. The Petitioner never filed an injury report on his behalf with the FRRB within fifteen (15) days of any injury.  (Id.)
18. On February 5, 2015, the FRRB denied the Petitioner’s application without convening a medical panel.  The FRRB reasons were that the 2001 and 2002 injuries to the right shoulder were time barred per G.L. c. 32, §§ 7(1) & 7(3) and, that a 2006 injury (not otherwise mentioned in the record) was not an acute injury, but an exacerbation of the original injuries.  The Petitioner had failed to seek medical treatment.  The left shoulder “overuse” injury is not compensable because his position does not expose him to an identifiable condition that is not common to all or a great many occupations.  (Exhibit 10.)
19. The Petitioner filed a timely appeal on February 13, 2015.  (Exhibit 11.)
20. In the Petitioner’s written submissions, his attorney indicated that he would be pursuing a claim for the left shoulder only.  (Attachments A and C.)

Conclusion

The Petitioner is entitled to prevail in this appeal.  He has met the threshold requirements for the initial processing of his Section 7 application.

The Petitioner has submitted a complete application and his doctor’s certification as to the three criteria: total disability, permanence and causation.   Further, he has offered preliminary evidence that, in performing the duties of a Truck Driver/Laborer in the repetitive manner in which he did overhead lifting, heavy lifting, heavy physical duties in the winter months and other inclement weather, shoveling of tar, dirt, gravel and stone, reaching above chest height, pushing, pulling and operating heavy machinery, his job was indeed distinguishable from a great many occupations as well as from everyday life.  This scenario may distinguish his case from Blanchette v. Contributory Retirement Appeal Board, 20 Mass. App. Ct. 479 (1985) and Adams v. Contributory Retirement Appeal Board, 609 N.E. 2d 62 (1993).  He is entitled to a regional medical panel evaluation.  Cf. Aromando v. Worcester Retirement Board, CR-00-1000 (2001)(McKenna, A.M.). 

It is also noted here that, by virtue of his being awarded Workers’ Compensation benefits related to cumulative stress in the left shoulder and the irreparable left shoulder rotator cuff tear, which was diagnosed in December 2012, the Petitioner has fulfilled his notice requirements per G.L. c. 32, § 7(1).  The FRRB seems to have ignored this factor in rendering its decision.     

The decision of the FRRB is hereby reversed.  This matter is remanded in order that a medical panel be convened to evaluate the Petitioner’s Section 7 application in the context of his claim of work-related cumulative stress causing his left shoulder irreparable rotator cuff tear. 

So ordered.

            Division of Administrative Law Appeals,

            BY:

 

            Judithann Burke

           Administrative Magistrate                                          

 

DATED:  March 16, 2018